II. Methodology: The Term Legal Culture and Its Applicability to Middle Byzantine Law

Legal culture

is a somewhat amorphous concept which is used primarily in the fields of Legal anthropology and the sociology of the law.

One basic definition runs “[i]t presupposes and invites us to explore the existence of systematic variations in patterns in ‘law in the books,’ in‘law in action,’ and above all, in the relation between them.19

The idea of legal culture can be traced back to the early days of the field of legal anthropology and is based on the notion that law cannot be understood apart from its wider cultural and societal context.20

Initially, legal anthropology was developed as a way of analyzing oral cultures which did not possess a written legal tradition.21

Lawrence Friedman introduced the term legal culture into the field of the sociology of the law as the amalgamation of a society’s legal ideology, practices, and social pressures. He distinguished between inner and external legal culture . Within Fried man’s schema,inner legal culture encompassed legal professionals, while external legal culture referred to the rest of society; the influence of the former, according to Friedman, is often exaggerated by legal scholars.22

Recently, legal culture has been used with reference to the modern nation-state, to describe for instance the cultural factors which account for differing rates of litigation among various contemporary European countries.23

Despite the usefulness of legal culture as a heuristic tool of historical analysis, its use has been criticized for its vagueness: “[a]ll too often, legal culture is a term used to account for that which cannot be accounted for in any other way — that is, culture becomes the beneficiary of the residual term in explanatory equations.”24

In this study as well, the term Byzantine Legal Culture is employed in a general way as referring to any aspect of the interaction between the normative legal regime and various phenomena — be they ideas about justice, customs and practices of a particular social group, or the influence of non-normative legal texts —of Middle Byzantine society. The principal objection of the sociologist of law in defining Byzantine Legal Culture in such an open-ended way — that such a definition impairs quantification — is in this case unfounded, since quantification of legal cultural phenomena (e.g., the percentage of the population which was regularly involved in civil suits) is impossible because of the paucity of the sources.It should be noted that this study is not the first to use the term Byzantine Legal Culture.It has been used, among others, by the Russian Byzantinist I.P. Medvedev, who uses the term quite differently in his monograph The Legal Culture of the Byzantine Empire.25

Although he did not call it “legal culture”, the eminent historian E.P. Thompson’s observation of the role of the law in Early Modern England perhaps best approximates the way legal culture is used in this dissertation, as an omnipresent, multi-faceted nexus of ideas about the law which pervades a particular society:

I found that law did not keep politely to a “level,” but was at every bloody level; it was imbricated within the mode of production and productive relations themselves (as property-rights, definitions of agrarian practice) and it was

simultaneously present in the philosophy of Locke; it intruded brusquely within alien categories, reappearing bewigged and gowned in the guise of ideology; itdanced a cotillion with religion, moralizing over the theater of the Tyburn; it wasan arm of politics and politics was one of its arms; it was an academic discipline,subjected to the rigor of its own autonomous logic; it contributed to the definitionof the self-identity both of rulers and of ruled; above all, it afforded an arena forclass struggle, within which alterative notions of law were fought out.

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III. Parameters of the Study

This dissertation is an analysis of Byzantine Legal Culture during the period of the Macedonian dynasty (867-1056). The rule of the Macedonian dynasty frames this study of Byzantine Legal Culture because while there are certain features of Byzantine Legal Culture which are diachronic, there are particular synchronic features of Byzantine Legal Culture under the Macedonian dynasty which distinguish it from other epochs of Byzantine history.27 First,law, like art and literature of the period, is distinguished by a so called “classicizing” tendency.28Some scholars have referred this phenomenon as the “Macedonian Renaissance” or, to use Paul Lemerle’s term, “encyclopedism.”29The “classical” past that the artists, jurists and writers of the Macedonian period evoked was often Late Roman, particularly the reigns of Constantine I and Justinian I.

However, the “Macedonian Renaissance” was also marked by a rapprochement with the pagan heritage of antiquity. This classicizing tendency in law is reflected in the recapitulation of Late Roman law, by which Byzantine law was purged via a “recleansing” (Gr.anakatharsis )of post-Justinianic legislation. Second, the Macedonian emperors, more so than any other Byzantine rulers after Justinian, chose to legitimate their rule by presenting themselves as guardians, patrons and protectors of the law. One can apply Alexis de Tocqueville’s of-cited observation about American politics in the early nineteenth century,that “ [t]here is hardly a political question in the United States which does not sooner or later turn into a judicial one,” to the way in which the Macedonian dynasty conducted its social policies. Indeed, the Macedonian dynasty’s principal attempt at internal reform, the protection of “poor” peasants against the“powerful”, predatory large landowners, was construed as a legal question.30

Nor was there solution of this legal question a one-way dynamic: the “powerful” managed to combat these regulations by interpolations in imperial novels.31

The Macedonian dynasty’s policies on“military lands” ( stratiōtika ktēmata ) can also be seen as the implementation of social policy vialegislation and the legal system.32 Third, the legal reforms of the Macedonian emperors Coincided with the last great flowering of Byzantine secular law. As this dissertation is a study of 10secular or civil law, it must be noted that for this period, a clear distinction between canon andcivil law is not always possible. From the time of Justinian, canon law had been granted the forceof secular law, and canonists throughout the Byzantine period drew upon secular law, particularly the CIC . Nonetheless, during this period both the prominent jurists, such as eustathios Rhomaios, Michael Attaleiates and Michael Psellos, and legal achievements, such asthe completion of the Basilika , the writing of secular legal treatises particularly in the eleventh century, and the foundation of a “law school” during the reign of Constantine IX Monomachos(r. 1042-55), were secular. The following centuries, particularly in the twelfth and again in the forteenth century, would be marked by a golden age of Byzantine canonists and canon law.

25 I.P. Medvedev,Правовая культура Византнйской нмпернн (St. Petersburg: Aleteǐi a,2001). Medvedev’s book covers the entire existence of the Byzantine state and would be classified as a study of inner legal culture in Friedman’s dichotomy, as much of it consists of an examination of the “notariat” (pp. 255 -402). Some of the book isalso of a more theoretical nature, such as whether the Byzantine Empire had a constitution (pp. 29-42).Unfortunately, as is the case with most of work of Russian Byzantinists, Alexander Kazhdan’s observation that“Russica sunt, non leguntur” is probably even more true today than when there was a robust presence of Byzantine Studies in the Soviet Union. Thus the work of Russian Byzantinists like Lipshit s and Medvedev, who write aboutByzantine law and were trained in this tradition, has not had as great an impact as one might expect.

27Various periodizations of Byzantine law exist, and they are discussed in great detail by Dieter Simon, “Die Epochen der byzantinischen Rechtsgeschichte”, Ius commune 15 (1988): pp. 73-106. Simon notes that Byzantinelegal history can be periodized according to “inner” and “outer” legal history. In Simon’s schema, “outer” legalhistory corresponds to legal sources (Quellengeschichte), while “inner” legal history is a history of legal institutions( Institutionengeschichte). If one accepts 1453 as an endpoint for the history of Byzantine law (which is itselfdebatable, but space does not permit a discussion of this here), then the history of Byzantine legal sources can bedivided, like Gaul, relatively unproblematically, into three parts: Early (330-842), Middle (842-1261) and Late(1261-1453) Byzantine (ibid ., pp. 93-4). Periodization is trickier for “inner” legal history, but Simon notes that it canutilize the same periodization as “outer” legal history if one adopts the Middle Byzantine period as a starting point(ibid ., p. 105). This tripartite schema is the one used in this study.

31 This has been maintained by Svoronos for a novel of Basil II issued to combat predatory land practices by the “powerful.” The novel was originally promulgated in January of 996 but was reworked at the end of the eleventh century. The second version of the novel in Svoronos’ view evidences interpolations by redactors sympathetic to the“powerful”; see ibid ., pp. 190-8 as well as idem, “Remarques sur la tradition du texte de la novelle de Basile IIconcernant les puissants”, Zbornik Radova Vizantološkog Instituta 8 (1964): pp. 427-34.

32 See the various publications of Danuta M. Górecki on this subject;eadem,“Constantine VII’s Peri ton stratioton”,Greek, Roman and Byzantine Studies 49.1 (2009): pp. 135-54;eadem, “Fiscal control of unproductive LAND In tenth century Byzantium: Policies and politics”, FM 10 (1998): pp. 239-60. Górecki tends to overstate thecontinuity of Roman/Byzantine state policy, e.g. especially the survival of Republican Roman tendencies in theMiddle Byzantine period(Górecki, “Fiscal control”, p. 260): “This provision reveals that Constantine’s perceptionof revitalizing the productivity of ADOREIA was not merely limited to the restoration of the tax revenue attached tothis land. His idea of allotting a piece of adoreia to a destitute peasant, together with promoting the peasant to the prestigious status of stratiotes , directly relates to the Roman Republican tradition in which public land had to servethe common good by maintenance of soldiers and prevention of social degradation of landless peasants.”